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THE TRIAL OF JEFFERSON DAVIS 

AN INTERESTING 
CONSTITUTIONAL QUESTION 




BY 

DAVID K. WATSON 



{Reprinted from the Yale Law Journal, June, 1915) 



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THE TRIAL OF JEFFERSON DAVIS 

An Interesting Constitutional Question. 

At a time when the whole country is reminded of the fiftieth 
anniversary of the death of President Lincoln, it seems appro- 
priate to call attention to the trial of Jefferson Davis, President 
of the Confederate States of America, who was suspected of being 
a party to Mr. Lincoln's assassination. 

On the 14th of April, 1865, President Lincoln was assassinated. 
The oath, as his successor, was at once taken by Vice-President 
Andrew Johnson. Early in the month of May following his 
succession to the presidency, Mr. Johnson issued a proclamation 
in which he said : 

"Whereas, it appears from evidence in the Bureau of 
Military Justice, that the atrocious murder of the late 
president, Abraham Lincoln, and the attempted assassi- 
* nation of the Honorable William H. Seward, secretary of 
state, were incited, concerted, and procured by and 
between Jefferson Davis, late of Richmond, Virginia," 
and other rebels and traitors against the government of 
the United States (naming them). "Now, therefore, to 
the end that justice may be done, I, Andrew Johnson, 
President of the United States, do offer and promise for 
the arrest of said persons, or either of tliem, within the 
limits of the United States, so that they can be brought 
to trial, the following rewards: one hundred thousand 
dollars for the arrest of Jefferson Davis," and suitable 
rewards were made for the arrest of all persons named 
in the proclamation. 

Under the impression that Mr. Davis had conspired with 
others to assassinate President Lincoln, Mr. James Speed, then 
Attorney General of the United States, gave an official opinion, 
that all persons implicated in the murder of President Lincoln, 
"are subject to the jurisdiction of, and legally triable before, a 
military commission." In pursuance of this opinion, the Judge 
Advocate General was directed to prepare charges against the 
parties named in the President's proclamation as having com- 
mitted the alleged offense, as it was the purpose of the govern- 
ment to try Mr. Davis by a military commission on the "charge 
of having procured the assassination of the President." 

Mr. Davis was captured on the loth of May, 1865, ^^^ was 
transferred to and imprisoned in Fortress Monroe and prepara- 



670 YALE LAW JOuMaL 

tions were at once begun on the part of the government for his 
trial. But during his imprisonment in Fortress Monroe, it was 
determined by the government to try him for treason against the 
United States, although the President, as previously stated, had 
ordered that he should be tried before a military commission in 
pursuance of the opinion of the Attorney General. That opinion, 
however, seems to have been changed, for the Attorney General 
gave a later opinion that "although originally captured by the 
military authorities, Jefferson Davis and other parties alluded to, 
are, after a cessation of hostilities, subject to trial only by civil 
courts." The subject of the trial came up for consideration 
before President Johnson and his cabinet and special attention 
was given to the place where the trial should be held, as the courts 
of Pennsylvania, Maryland, Virginia and the District of Columbia 
had jurisdiction. An indictment was found against Mr. Davis 
in the District of Columbia, but no action was taken on it by 
the government. Owing to the disturbed political conditions of 
the country and to the question whether the judicial status of 
the federal court at Richmond was sufficiently determined to 
justify its taking jurisdiction in the case for the purpose of trying 
Mr. Davis, there was considerable delay in the proceedings. On 
this subject, the Attorney General in his opinion said: 

"When the courts are open, and the laws can be peace- 
fully administered and enforced in those states whose 
people rebelled against the government — when thus peace 
shall have come, in fact and in law, the persons now held 
in military custody as prisoners of war, and who have 
not been tried and convicted for offenses against the laws 
of war, should be transferred into the custody of the civil 
authorities of the proper districts, to be tried for such high 
crimes and misdemeanors as may be alleged against tliem." 

• By this time, it had become conclusively established that the 
charge made in the proclamation by President Johnson that Mr. 
Davis had been connected with the assassination of President 
Lincoln and the attempted assassination of Secretary Seward, 
was without foundation and wholly groundless. The only ofiQcial 
action which was based on the report was President Johnson's 
proclamation issued almost immediately after the death of Presi- 
dent Lincoln and at a time when the public mind and conscience 
were intensely aroused and imposed upon by false and malicious 
reports of almost every character. But as soon as the facts con- 
cerning the assassination were learned, it was also learned that 



THE TRIAL OF JEFFERSON DAVIS 671 

Mr. Davis was wholly innocent of any connection, public or 
private, with that shocking and cruel tragedy. 

On the 8th day of May, 1866, being two days less than one 
year after his capture, Mr. Davis was indicted by the grand jury 
of the United States Court for the District of Virginia. As this 
indictment is short and its language peculiar and some of its 
averments most singular, its insertion in this article will be of 
interest. It reads as follows : 

"The United States of America, District of Virginia, to-wit : In the 
Circuit Court of the United States of America in and for the District 
of Virginia, at Norfolk : 

May Term, 1866. 

The grand jurors of the United States of America, in and for the Dis- 
trict of Virginia, upon their oaths and affirmations respectively, do present 
that Jefferson Davis, late of the city of Richmond, in the county of 
Henrico, in the district of Virginia, aforesaid, yeoman, being an inhabitant 
of, and residing within, the United States of America, and owing allegiance 
and fidelity to the said United States of America, not having the fear of 
God before his eyes, nor weighing the duty of his said allegiance, but 
being moved and seduced by the instigation of the devil, and wickedly 
devising, intending the peace and tranquillity of the said United States 
of America to disturb, and the government of the said United States of 
America to subvert, and to stir, move, and incite insurrection, rebellion 
and war against the said United States of America on the fifteenth day 
of June, in the year of our Lord one thousand eight hundred and sixty- 
four, in the city of Richmond, in the county of Henrico, in the district 
of Virginia aforesaid, and within the jurisdiction of the Circuit Court of 
the United States for the fourth circuit in and for the district of Virginia 
aforesaid, with force and arms, unlawfully, falsely, maliciously, and 
traitorously did compass, imagine, and intend to raise, levy, and carry on 
war, insurrection, and rebellion against the said United States of America, 
and in order to fulfill and bring to effect the said traitorous compassings, 
imaginations, and intentions of him, the said Jefferson Davis, afterward, 
to wit, on the said fifteenth day of June, in the year of our Lord one 
thousand eight hundred and sixty-four, in the said city of Richmond, in 
the county of Henrico, and district of Virginia aforesaid, and within the 
jurisdiction of the Circuit Court of the United States for the fourth cir- 
cuit in and for the said district of Virginia, with a great multitude of 
persons whose names to the jurors aforesaid are at present unknown, to 
the number of five hundred persons and upward, armed and arrayed in 
a warlike manner, that is to say, with cannon, muskets, pistols, swords, 
dirks, and other warli'-.e weapons, as well offensive as defensive, being 
then and there unlawfully, maliciously, and traitorously assembled and 
gathered together, did falsely and traitorously assemble and join them- 
selves together against the said United States of America, and then and 
there, with force and arms, did falsely and traitorously, and in a warlike 
and hostile manner, array and dispose themselves against the said United 



672 YALE LAW JOURNAL 

States of America, and then and there, that is to say, on the said fifteenth 
day of June, in the year of our Lord one thousand eight hundred and 
sixty-four, in the said city of Richmond, in the county of Henrico, and 
district of Virginia aforesaid, and within the jurisdiction of the said 
Circuit Court of the United States for the fourth circuit in and for the 
said district of Virginia, in pursuance of such their traitorous intentions 
and purposes aforesaid, he, the said Jefferson Davis, with the said persons 
so as aforesaid traitorously assembled, and armed and arrayed in the 
manner aforesaid, most wickedly, maliciously, and traitorously, did ordain, 
prepare, levy, and carry on war against the said United States of America, 
contrary to the duty, allegiance, and fidelity of the said Jefferson Davis, 
against the constitution, government, peace and dignity of the said United 
States of America, and against the form of the statute of the said United 
States of America, in such case made and provided. 

This indictment, founded on testimony of James F. Milligan, George P. 
Scarbury, John Good, Jr., J. Hardy Hendren, and Patrick O'Brien, sworn 
in open court and sent for by the grand jury. 

L. H. Chandler, 
United States Attorney for the district of Virginia." 

Although this indictment was returned against Mr, Davis by 
the civil authorities, he had been arrested and was held a prisoner 
in Fortress Monroe under military authority, and therefore, could 
not be tried by the ci' ,;•,' courts. Application was made for his 
release on bail, but th- > was refused on the ground tliat as the 
prisoner was committ ./ and held as a military prisoner, the civil 
authorities had no pov/er to release him. 

On the 6th of October, 1866, President Johnson addressed a 
letter to the Attorney General, then the Honorable Henry Stan- 
bery, asking "what further steps, if any, should be taken by the 
Executive with a view to a speedy, public, and impartial trial of 
the accused (referring to Mr. Davis) according to the constitu- 
tion and laws of the United States." On the 12th of October, 
the Attorney General replied at some length to this letter, in which 
he reviewed the important events in the case and concluded his 
opinion as follows : 

"I would suggest that, to avoid any misunderstanding on 
the subject, an order be issued to the commandant of 
Fortress Monroe to surrender the prisoner to civil cus- 
tody, whenever demanded by the United States marshal, 
upon process from the federal courts." 

It was in pursuance of this opinion, that the custody of Mr. 
Davis was transferred from the military to the civil authorities. 
Some time after this opinion of the Attorney General, a petition 
in habeas corpus was filed in the United States Circuit Court of 



THE TRIAL OF JEFFERSON DAVIS 673 

Virginia, praying that an inquiry be made into the cause of the 
commitment and detention of the prisoner and that the person 
having the prisoner in charge should abide by such order as the 
court might make in the premises. As the result of this petition, 
a writ was issued to the custodian of Mr. Davis to produce him 
in court. On the 13th of May, 1867, Mr. Davis was produced in 
court by General H. S. Burton, Commandant of Fortress Monroe, 
and surrendered by him to the United States Marshal. Upon 
this being done, the presiding judge remarked: "General Burton 
is now honorably relieved of the custody of the prisoner, who 
passes into the custody of the Court, under the protection of 
American Republican law." The transfer of the prisoner gave 
the civil authorities complete control over him, after he had been 
confined as a military prisoner for more than two years. The 
civil authority over the case had hardly been established when 
the prisoner was admitted to bail on motion of his counsel, upon 
his executing a satisfactory bond in the sum of one hundred 
thousand dollars. The bond was signed by many wealthy and 
representative citizens, among whom was the distinguished 
Horace Greely, who was the first to attach his signature to the 
instrument. Upon the execution of the bond the marshal dis- 
charged Mr. Davis from custody. Principally for tlie reason 
that Chief Justice Chase, who was to preside at the trial, could 
not sooner attend, the trial was postponed until the March term 
of the court in 1868. At that term, however, a new indictment 
was found against Mr. Davis, by the grand jury sitting at Rich- 
mond. This indictment was of such great length that it covers 
twenty-one printed pages. 

One of the witnesses, upon whose testimony the new indict- 
ment was found, was Robert E. Lee, late commander of the 
Confederate armies. The indictment charged in various ways 
that Mr. Davis was guilty of treason against the government of 
the United States. The case was again continued until the 
November term of the court in 1868, when one of the counsel for 
Mr. Davis made an affidavit in which he stated that, 

"Jefferson Davis was in the year 1845, previous to the 
alleged commission of the offenses set forth and charged 
in said indictment, a member of the Congress of the 
United States, to wit, a member of the House of Repre- 
sentatives of the United States from the State of Missis- 
sippi in said Congress, and as such the said Jefferson Davis, 
on the eighth day of December, 1845, took an oatli to 
support the Constitution of the United States." 



674 YALE LAW JOURNAL 

When this affidavit was filed, counsel for Mr. Davis asked that 
the indictment against him be quashed. This raised the inter- 
esting constitutional question. 

On the 3rd of December, 1868, the question was argued, and 
a brilliant array of counsel appeared for the defendant and also 
for the government. Mr. William M. Evarts, who had pre- 
viously been of counsel for the government, seems not to have 
appeared in the case at this time. The question presented for 
the determination of the court by counsel for Mr. Davis was 
contained in the following written statement made by Mr. 
O'Connor : 

"The indictments in these cases were framed on the 
alleged fact that the defendant had engaged in the insur- 
rection and rebellion against the United States, known to 
the court and to the several departments of the govern- 
ment as having existed at the several times mentioned in 
the said indictment in the State of Virginia and elsewhere, 
and thereby given aid and comfort to the enemies of the 
United States engaged in said insurrection and rebellion. 

And the defendant alleges that prior to such insurrection 
and rebellion, and in the year 1845 he, the said defendant, 
was a member of the congress of the United States, and 
as such member took, in said year, an oath to support the 
constitution of the United States in the usual manner, and 
as required by law in such case. 

And the defendant alleges in bar of any proceedings 
upon said indictments, or either of them, the penalties and 
disabilities denounced against and inflicted on him for his 
said alleged offense by the third section of the fourteenth 
article of the constitution of the United States, forming 
an amendment to such constitution. 

And he insists that any judicial proceeding to inflict any 
other or further pain, penalty, or punishment upon him 
for such alleged offense is not admissible by the consti- 
tution and the laws of the United States. 

Wherefore he, the said defendant, moves the court now 
here to quash and set aside the said indictments, or to dis- 
miss the same and the prosecution thereon, or to render 
such other relief in that nature as the aforesaid facts and 
circumstances shall require, and as may seem proper." 

Such a question had never before been raised in the history of 
American jurisprudence and has never been raised since. It was 
exceedingly novel, interesting and important. The original con- 
stitution of the United States had defined treason — the only crime 
it did define. It provided that, "Treason against the United 
States, shall consist only in levying war against them, or in adher- 



THE TRIAL OF JEFFERSON DAVIS 67$ 

ing to their enemies, giving them aid and comfort." It had also 
provided, "That congress shall have power to declare the punish- 
ment of treason." The act of April 30th, 1790, was the first 
legislation of congress on the subject of treason and it provided 
that the punishment for that offense shall be "death by hanging." 
This continued to be the punishment until the act of 1862, by 
which congress provided, "That every person guilty of treason 
shall suffer death ; or, at the discretion of the court, shall be 
imprisoned at hard labor for not less than five years and fined 
not less than ten thousand dollars, and that every person so con- 
victed of treason, shall moreover, be incapable of holding any 
office under the United States." This act was passed in the very 
midst of the Civil War, while those who were guilty of treason 
against the government were aiming their cannon at the dome of 
our national capitol, and the roll of their drums could be heard 
from the halls of congress. Its passage was due to the recom- 
mendations of President Lincoln, who said he was so frequently 
asked to pardon those who had been convicted of treason, whom 
he thought should not suffer death, on account of their youth, 
that he suggested a modification of the punishment for such 
offense. It is hardly conceivable that unless some such influence 
was exerted, congress would have passed such an act at such a 
time. The provision of the act that "Every person so convicted 
of treason shall moreover be incapable of holding any office under 
the United States" was subsequently incorporated into the four- 
teenth amendment to the constitution. 

It is not considered necessary in this article to review the argu- 
ments of counsel on the respective sides of the question made in 
behalf of Mr, Davis. They were, of course, very able. At the 
conclusion of the argument of Mr, O'Connor, who closed in 
behalf of Mr. Davis, the Chief Justice announced that the court 
would take the motion to quash the indictment under considera- 
tion. On December 5th, the Chief Justice made the announce- 
ment that the court had "failed to agree upon a decision in regard 
to the motion," Thereupon, counsel for Mr, Davis asked "that 
the fact of the disagreement be certified to the Supreme Court of 
the United States," which request was granted and the following 
entry was made upon the journal of that court: 

"At that term of the court, begun and held at Richmond, 
in the said district, on the 23rd day of November, 1868, 
and continued until this day, a motion was made on behalf 



676 YALE LAW JOURNAL 

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of the defendant to quash or set aside the said indictment, 
and to dismiss the same and the prosecution thereof. 

And upon that motion it appeared that the said Jefferson 
Davis, having previously to the offenses charged in the 
said indictment taken an oath as a member of congress 
to support the constitution of the United States, the ques- 
tion arose whether, by the operation and effect of the 
third clause of the fourteentli amendment to the consti- 
tution of the United States, the defendant is exempted 
from indictment or prosecution for treason in levying war 
and participating or engaging in the late rebellion. And 
upon that question the opinions of the judges were 
opposed. And thereupon the said point is upon the request 
of the said defendant, stated under the direction of the 
said judges, and certified under the seal of the said Circuit 
Court to the Supreme Court of the United States at its 
next session." 

The supreme court_ never decided the question which was cer- 
tified to it. The certificate of disagreement is somewhere among 
the records of that court, but no hearing was ever had upon it. 
The issuing of the President's proclamation of general amnesty 
had a quieting effect on the country and amidst the peaceful 
feeling which followed, the clamors of the warlike spirit sub- 
sided and at a later term of the United States Court in Rich- 
mond, Virginia, the indictments against Mr. Davis were laid 
away. Thus ended the case of the United States v. Jefferson 
Davis. It was dismissed from the docket of the Supreme Court 
at Washington on motion of the Attorney General of the United 
States on the 19th of February, 1869. But no formal order was 
made dismissing the case in the federal court at Richmond, - 
Virginia. So far as that court was concerned, it simply died. 

David K. Watson. 
Columbus, Ohio. 




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